Middletown City Zoning Code

ARTICLE 25A

WIND TURBINES

§ 25A00 PURPOSE.

The purpose of this article is to provide for the construction and operation of wind turbines, also known as wind energy conversion facilities, and to provide standards for the placement, design, construction, monitoring, modification and removal of wind turbines that address public safety, minimize impacts on scenic, natural and historic resources of the town, and provide adequate financial assurance for the costs of decommissioning and removal.

(Ord. passed 2-16-10)

§ 25A01 APPLICABILITY.

This article applies to all wind turbines constructed or substantially modified after the effective date of this article.

(Ord. passed 2-16-10)

§ 25A02 DEFINITIONS.

For purposes of this article, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

BUILDING-MOUNTED WIND TURBINE. A wind turbine mounted on an existing building.

FALL ZONE. The calculated area of the land surrounding a wind turbine that may be affected by debris should the supporting structure collapse or any component of the wind turbine or anything attached to it fall to the ground. The fall zone for all wind turbines shall be measured at ground level below the center of the wind turbine as a circular area with a radius of 175% of the height of the wind turbine.

HEIGHT. The height of a wind turbine measured from pre-development grade to the tip of the rotor blade at its highest point, or blade-tip height.

OCCUPIED BUILDING. Any building regularly occupied by one or more persons on a daily basis. Buildings ordinarily used for storage, such as garages, sheds, and the like, are not occupied buildings even though they may be entered for brief periods on a daily basis.

PROMINENT PUBLIC VANTAGE POINT. A location from which a significant number of the public views a scenic, natural or historic landscape in the Town of Middletown.

SETBACK. The setback requirements for wind turbines shall be those applicable to principal structures, as defined in Article 4.

TOWER-MOUNTED WIND TURBINE. A wind turbine mounted on a free-standing tower that does not exceed 120 feet in height.

WIND MONITORING or METEOROLOGICAL TOWER. A temporary tower equipped with devices to measure wind speeds and direction, used to determine how much wind power a site can be expected to generate.

WIND TURBINE. A device that converts kinetic wind energy into rotational energy that drives an electrical generator. A wind turbine typically consists of a tower, nacelle body, and a rotor with two or

more blades. Unless the wording or context indicates otherwise, a wind turbine for purposes of this article includes the tower and the base or foundation on which it is mounted (but not the building supporting a building-mounted wind turbine), and all equipment, machinery and structures on site utilized in connection with the collection, storage, and transmission of electricity from the wind turbine.

(Ord. passed 2-16-10; Am. Ord. 2010-28, passed 10-18-10; Am. Ord. 2012-14, passed 9-17-12)

§ 25A03 BASIC REQUIREMENTS.

(A) No wind turbine shall be permitted in any zoning district, except that building-mounted turbines, and tower-mounted turbines not to exceed 120 feet in height, may be permitted on parcels where the primary use is comprised of one or more of the following: field crop farms or horticultural nurseries; livestock farm.

(B) No wind turbine may be constructed or substantially modified without first obtaining a special-use permit from the Zoning Board of Review.

(1) Wind facilities shall be constructed and operated in a manner that minimizes any adverse visual, safety, and environmental impacts.

(2) Wind turbines shall have an automatic braking, governing, or feathering system to prevent uncontrolled rotation, overspeeding and excessive pressure on the tower structure, rotor blades and other turbine components.

(3) FAA Regulations. Wind facilities shall comply with applicable requirements of the Federal Aviation Administration (FAA).

(4) Setbacks. Wind turbines shall be set back from all property lines a minimum distance equal to three times the height of the turbine.

(5) Fall zone. The fall zone shall be a condition of obtaining a special-use permit for a wind turbine, which may not be varied by means of a dimensional variance or special-use permit. The fall zone shall be located entirely within the boundaries of the lot on which the wind turbine is located. Except for building-mounted wind turbines, no occupied building shall be located within the fall zone of a wind turbine.

(6) The minimum ground clearance for the wind turbine blades of horizontal axis turbines shall be 25 feet. The minimum ground clearance for blades of vertical axis turbines shall be ten feet.

(7) Wind turbines shall not be located in areas that will result in the wind turbine dominating the view of a scenic, natural or historic resource of the town from one or more prominent public vantage points.

(8) Temporary wind monitoring or meteorological towers shall be permitted in all zoning districts subject to issuance of a building permit and subject to reasonable conditions imposed by the Building Official. Such towers shall be erected as near as reasonably possible to the proposed location of the wind turbine on the site, and shall comply with the setback and fall zone requirements of this article. Temporary wind monitoring or meteorological towers shall not remain in place for more than one year.

(9) Maintenance. Wind turbines shall be maintained in good condition. Such maintenance shall include painting, structural repairs, and integrity of security measures. The proposed maintenance schedule shall be provided with the application package. A report demonstrating compliance with the maintenance schedule shall be submitted annually to the Department of Building and Zoning on the anniversary of the issuance of the building permit.

(10) Insurance obligation. At all times from the installation of a wind turbine until its removal the owner shall maintain liability insurance in an amount

sufficient to cover loss or damage to persons and structures that might proximately be caused by the wind turbine. The insurance policy shall provide for notification to the Department of Building and Zoning a minimum of 30 days prior to its expiration or cancellation.

(11) The height of a building-mounted wind turbine may not exceed 15 feet above the height limit for the type of building on which it is mounted.

(Ord. passed 2-16-10; Am. Ord. 2010-28, passed 10-18-10; Am. Ord. 2012-14, passed 9-17-12)

§ 25A04 DESIGN STANDARDS.

(A) Color and finish. All components of the wind turbine shall be painted a neutral, non-reflective exterior color designed to blend with the surrounding environment, such as white, light gray or light blue.

(B) Lighting. Wind turbines shall be lighted only if required by the FAA. Lighting of non-tower parts of the wind turbine, such as appurtenant structures, shall be limited to that required for safety, security, and operational purposes, and shall be reasonably shielded from abutting properties. Lighting shall be designed to minimize glare on abutting properties and except as required by the FAA be directed downward with full cut-off fixtures to reduce light pollution.

(C) Shadow/flicker. Wind turbines shall be sited to ensure that no shadowing or flicker occurs on neighboring property. The applicant has the burden of proving that the wind turbine will not produce shadowing or flicker on neighboring property. A failure to meet this burden of proof shall result in denial of the wind turbine application.

(D) Noise. Noise levels resulting from operation of a wind turbine shall not exceed 30 dB(A) as measured at the property line, and averaged over a ten minute time period. This provision is to be considered a minimum standard, and the Zoning Board of Review may impose more restrictive requirements as deemed necessary. The applicant shall present appropriate documentation and/or analysis to demonstrate to the satisfaction of the Zoning Board of Review that the proposed installation will comply with this requirement.

(E) Signs. A clearly visible warning sign concerning voltage shall be placed at the base of all wind turbines. No other signs shall be permitted on any wind turbine, except signs necessary to identify the owner, provide emergency contact information, and warn of other dangers associated with the wind turbine. Also permitted are educational signs providing information about the wind turbine and the benefits of renewable energy. All signs shall comply with the requirements of Article 12, Signs.

(F) Before issuance of a permit for the wind turbine, the applicant shall submit documentation from the utility approving the proposed connection. All electrical connections, including transformers, shall be installed underground unless the utility, as shown by the documentation, requires the electrical connections to be installed above-ground.

(G) Unauthorized access. Wind turbines shall be designed to prevent unauthorized access. When deemed reasonably necessary because of the location of the wind turbine on the site and the surrounding neighborhood, the Zoning Board of Review may require protective fencing.

(H) Appurtenant structures. Appurtenant structures, such as equipment shelters, storage facilities, transformers, and substations, shall be contained within the turbine tower or other existing structures on the property whenever technically and economically feasible; shall be used only for housing of equipment for this particular site; and, whenever reasonable, shall be shielded from view by vegetation and/or located in an underground vault and joined or clustered to avoid adverse visual impacts. Appurtenant structures to wind turbines are subject to regulations of this chapter pertaining to accessory buildings in Table 6-2, § 603.

(I) Towers. Monopole towers, rather than lattice or cable-supported towers, shall be used for wind turbines unless the Zoning Board of Review finds, for reasons stated in its opinion, that the use of a monopole tower is impractical. If a cable-supported tower is used, reflective colored objects, such as flags, reflectors, or tape, shall be placed on the anchor points of guy wires and along the guy wires up to a height of ten feet from the ground.

(J) Other considerations. In deciding whether to grant a special-use permit for a wind turbine, the Zoning Board of Review may consider all relevant matters not expressly mentioned in this article, such as the potential adverse impacts of the wind turbine on wildlife habitats and scenic vistas, and interference with electromagnetic communications, such as telephone, radio, and television. Wind turbines shall not interfere with any telecommunications transmissions, including local emergency responders, military and civilian personal radio use. The Board shall consider the provisions of § 904 and may impose special conditions reasonably necessary to remove or alleviate any potential adverse impacts.

(Ord. passed 2-16-10; Am. Ord. 2012-14, passed 9-17-12)

§ 25A05 PROCEDURES.

(A) The following information shall be provided to the Zoning Board of Review with an application for a special-use permit to install a wind turbine:

(1) Site plan. A plan of the proposed wind turbine site, scaled at one inch equals 20 feet, with contour intervals of no more than two feet, showing the following:

(a) Property lines for the site parcel and adjacent parcels within 200 feet.

(b) Outline of all existing buildings, including purpose (e.g. residence, garage, etc.) onsite parcel and all adjacent parcels within 200 feet. Include distances from the wind turbine to each building shown.

(c) Location of all roads, public and private, on the site parcel and on adjacent parcels within 200 feet, and proposed roads or driveways, either temporary or permanent.

(d) Proposed location and design of the wind turbine(s), including ground equipment, appurtenant structures, transmission infrastructure, access, fencing, and exterior lighting.

(e) Location of the representations required by division (A)(6) below.

(2) Environmental analysis. For a tower-mounted wind turbine proposed to exceed 100 feet in height, an environmental impact analysis report, prepared by a professional environmental consulting firm, shall be submitted with the application package. The report shall, at a minimum, address the following factors:

(a) Constraints imposed by environmental and archeological regulations.

(b) The presence of animal species of concern, or critical habitat for these species.

(d) Presence of critical areas of species congregation, such as maternity roosts, hibernation sites, staging areas, winter ranges, nesting sites, and migration stopovers.

(e) The potential impact of habitat fragmentation.

(f) Current studies of avian risk specific to the proposed turbine type and its potential impact on known species that are either present,

migrate through the project area, or may be attracted by site alteration.

(g) The environmental analysis should include the following recommendations:

1. Suitability of the site for wind development in light of its environmental impact.

2. Design and operational recommendations to avoid or minimize significant adverse environmental impacts.

3. Recommended mitigation measures if significant adverse habitat impacts cannot be avoided.

4. Determination if post construction studies are advised to evaluate animal mortality and develop operational measures for mitigation if necessary.

(3) After the special-use permit has been approved by the Zoning Board of Review, a copy of the site plan shall be provided to the Middletown Fire Department. Upon request of the Fire Department, the applicant shall cooperate with local emergency services in developing an emergency response plan.

(4) Documentation showing that the safety requirements of § 25A03(C) will be satisfied.

(5) Documentation showing that a policy of insurance satisfying the requirement of § 25A03(C)(10) is available to the applicant. Further documentation showing that such insurance has been obtained must be presented to the building official in order to obtain a building permit for the wind turbine.

(6) Visual impact illustrations. The purpose of this requirement is to show how the proposed wind turbine will affect the existing viewscape in the area, including the impact of the wind turbine on scenic, natural and historic resources of the town. To satisfy this requirement the applicant shall submit color photo representations of the proposed wind turbine, including three to six sight lines, one from the nearest occupied building with a view of the wind turbine. Such representations shall include actual photos for pre-construction views and accurate post-construction simulations (e.g. superimpositions of the wind turbine onto photographs of existing views). Sites for the view representations shall be selected from populated areas or public ways within a two-mile radius of the wind turbine. View representations shall include existing and proposed buildings and tree coverage, and shall describe the technical procedures followed in producing the representations (distances, angles, lens, etc.).

(7) An impact statement prepared by a qualified individual or firm which identifies the potential adverse impacts of the wind turbine to the community, neighborhood, and the built environment. Measures for mitigating any potential adverse impacts, such as noise, flicker or shadowing, and electronic communications interference shall be identified in the statement.

(8) Landscape plan. A plan indicating all proposed changes to the landscape of the site, including temporary or permanent roads or driveways, grading, vegetation clearing and planting, exterior lighting, and screening vegetation or structures.

(9) An operation and maintenance plan, describing the general procedures for operational maintenance of the wind turbine and for maintenance of access roads and storm water controls, if applicable. The plan shall also describe the provisions for remote monitoring, and the proposed maintenance and inspection schedule.

(B) Independent consultants. The Zoning Board of Review be authorized to hire outside consultants, at the applicant’s expense, as necessary to fully evaluate the design and potential impacts of the proposed wind turbine.

(C) Required findings on protection of scenic, natural and historic resources. In view of the requirement in the Middletown Comprehensive Community Plan that wind turbines be located so as not to dominate the visual qualities of the land from prominent public vantage points, the Zoning Board of Review, in considering an application for a special-use permit to install a wind turbine, shall make a specific finding as to whether the proposed wind turbine will dominate the view of any scenic, natural or historic resource of the town from any prominent public vantage point, and shall support its finding with reasons based on evidence.

(Ord. passed 2-16-10; Am. Ord. 2010-28, passed 10-18-10; Am. Ord. 2012-14, passed 9-17-12)

§ 25A06 UNUSED OR ABANDONED WIND TURBINES.

(A) Any wind turbine which has been abandoned shall be removed. Abandonment shall be presumed if the wind turbine is not operated for a period of 60 days or more. This presumption may be rebutted by submission of a letter or other signed document from the owner to the Building Official which satisfactorily states the reasons for cessation of operation and plans for restoring operation, including an estimated time for repairs or other work necessary.

(B) At least 30 days before a large- tower wind turbine is scheduled to be decommissioned, the owner shall notify the Building Official by certified mail of the proposed date of discontinued operations and plans for removal. The owner is responsible for securing any necessary state and local permits prior to dismantling the wind turbine.

(C) Abandoned wind turbines, including towers and their base or foundation and all associated structures and components, shall be physically removed from the site. Medium-tower and wind turbines shall be removed within 90 days from cessation of operation. If the owner fails to remove the wind turbine in accordance with the requirements of this section, the town shall have the authority to enter the property and physically remove the wind turbine. In that case, the owner of the wind turbine shall be responsible for removal costs incurred by the town, and the obligation shall be recorded in the Land Evidence Records as a lien against the property.

(D) When a turbine is removed, the site shall be restored to the state it was in before the wind turbine was constructed. If applicable, solid and hazardous waste generated by the wind turbine shall be disposed in accordance with local and state waste disposal regulations, and the site shall be stabilized and vegetation planted to minimize erosion. The owner is responsible for securing any necessary state and local permits prior to dismantling the wind turbine.

(Ord. passed 2-16-10; Am. Ord. 2012-14, passed 9-17-12)

§ 25A07 ENFORCEMENT.

Violations of this article shall be enforced by the Zoning Officer under Article 3.